Tuesday, December 30, 2008

Yesterday I wrote about Sen. James Webb's goal of reforming the prison system in the U.S. The Washington Post article describing Webb's goal referenced a story Webb wrote for Parade magazine back in 1984:

A journalist at the time, he was working on an article about Ed Arnett, an American who had spent two years in Fuchu Prison for possession of marijuana. In a January 1984 Parade magazine piece, Webb described the harsh conditions imposed on Arnett, who had frostbite and sometimes labored in solitary confinement making paper bags.

The Senator's "Webbsite" has a link to the original article, entitled 'What we can learn from Japanese Prisons," which describes Arnett's experience in the Japanese legal system and, later, one of its prisons:

FUCHU PRISON, near Tokyo is home to 2500 of Japan's most hardened criminals. Ed Arnett is an alumnus who thinks of Fuchu daily. The dank, unheated buildings, the harshness of the guards' reports to their superiors, the high stone walls--these are as near to him as the scars on his legs, from the frostbite he picked up in his Fuchu cell.

"I didn't know I could still cry until I went to prison in Japan," says Arnett, convicted in 1979 for possession of two kilograms of marijuana. "I wouldn't put that experience on anybody."

How does Arnett rate this harsh experience compared to the prison system in his own country?

But, surprisingly, Arnett, home in Omaha, Neb., says he prefers Japan's legal system to ours. Why? "Because it's fair," he says. "The never tried to trick me, even in interrogation. They were always trustworthy. 1 could have got five years and they gave me two. The Americans who were helping them wanted me to get 20. The guards at Fuchu were hard, but they never messed with you unless there was a reason. You didn't have to worry about the other prisoners coming after you, either. And the laws of Japan are for everybody. That's the main thing. The laws in this country depend on how much you can pay. I'd rather live under a hard system that's fair."

Monday, December 29, 2008

It's great to hear that Virginia Senator Jim Webb has set his sights on reforming the prison system in the U.S. As the Washington Post article states today:

This spring, Webb (D-Va.) plans to introduce legislation on a long-standing passion of his: reforming the U.S. prison system. Jails teem with young black men who later struggle to rejoin society, he says. Drug addicts and the mentally ill take up cells that would be better used for violent criminals. And politicians have failed to address this costly problem for fear of being labeled "soft on crime."

It is a gamble for Webb, a fiery and cerebral Democrat from a staunchly law-and-order state. Virginia abolished parole in 1995, and it trails only Texas in the number of people it has executed. Moreover, as the country struggles with two wars overseas and an ailing economy, overflowing prisons are the last thing on many lawmakers' minds.

But Webb has never been one to rely on polls or political indicators to guide his way. He seems instead to charge ahead on projects that he has decided are worthy of his time, regardless of how they play -- or even whether they represent the priorities of the state he represents.

As I wrote earlier, this troubling New York Times article describes how:- The U.S. "has 751 people in prison or jail for every 100,000 in population.- Russia is second with 627 prisoners for every 100,000 people. - England’s rate is 151; Germany’s is 88; and Japan’s is 63.

No wonder Webb thinks Japan's prison system could become a model for ours:

Still, Webb said, the United States could learn from the Japanese system. In his book, "A Time to Fight," he wrote that the Japanese focused less on retribution. Sentences were short, and inmates often left prison with marketable job skills. Ironically, he said, the system was modeled on philosophies pioneered by Americans, who he says have since lost their way on the matter.

Webb believes he can guide the nation back. "Contrary to so much of today's political rhetoric," he wrote, "to do so would be an act not of weakness but of strength."

Tuesday, December 23, 2008

Here is an excellent slideshow of the faces of those affected by the push to nullify gay marriage in California. Maybe I've missed these in the past, but this seems like an amazing way to bring an issue down to the heart level. I recently found out that a friend of mine was married earlier this year in California and now, after witnessing the passage of Prop 8, she has to worry about the legality of her marriage being in jeopardy. Finding that out, and seeing pictures of the wedding last weekend, really brought the issue "home" for me. Whether you know someone who's affected or not, the slideshow will likely bring the issue "home" too.

Sunday, December 21, 2008

"You do solemnly swear that you will support the Constitution of the United States, and the Constitution of this state, and that you will faithfully discharge the duties of an attorney and counselor, according to the best of your ability."

It's similar to the oath George Bush took and that Barack Obama will take in that it requires the taker to "support [and uphold] the Constitution of the United States." Since I practice criminal defense law, I'm constantly asked, in defending my clients at sentencing and upon requesting a particular sentence, whether subjecting the person standing beside me to the penalty I request will deter lawbreaking in the future.

We ask that question automatically in criminal court and I find myself addressing it frequently as people ask me, "how can you defend those people?" This common question assumes somehow that "these people" are almost all guilty, that I'm a little suspicious for standing beside them, and that "these people" are not sufficiently punished, likely through my efforts, in court.

This question springs from a common, modern belief in America that somehow we're not punishing criminals enough and that punishment alone will deter criminals. As I've written before, however, (quoting from the New York Times) it's not like we haven't tried punishment through incarceration at alarming rates. As the NYT article I referenced in that post shows: "The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners." The article goes on to show that:

- Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. - And in particular they are kept incarcerated far longer than prisoners in other nations.- Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.

But what do you do when a political leader goes on national t.v. and admits to approving waterboarding, as Dick Cheney did last week? Do you, like Mayor Diamond Joe Quimby create a "blue ribbon commission" to investigate, which will likely take up enough time to ensure that criminal prosecutions growing out of it are very unlikely because of statute of limitations issues?

Do you appoint a Republican prosecutor, like Patrick Fitzgerald, to investigate and potentially prosecute the Bush, Cheney, Yoo, Addington, et al, as Greenwald called for on Bill Moyers' Journal last week? Do you simply forgive, forget and move on, as many beltway Democrats will likely prescribe?

As Glenn Greenwald shows, mainstream media calls for prosecutions are growing, as are cries for forgiving and forgetting?

Greenwald yesterday addressed the question "If criminal penalties are removed, what will deter lawbreaking by political officials?" Ironically, in a country with 1/20th of the world's population and 1/4th of its prisoners- which constantly asks itself the question "but won't letting this potential criminal off easy promote disrespect for and violation of the law in the future?"- it has somehow become fashionable to suddenly forgive and forget when it comes to potential criminality on the part of political leaders.

Molly Ivins (in a column I can't find) once said she thought the country which believed it essential to prosecute Nixon had now lost its appetite to prosecute its leaders. This is dangerous whatever your political stripe as not only do we not want to allow law breaking to go unpunished, we certainly don't want to create a climate in which "some pigs are more equal than others" as occurred on the Animal Farm.

In short, if our leaders, who each take oaths to defend and uphold the Constitution, violate it, even having the gall to admit this on national television, they need to be prosecuted in the same way those who carried out their orders were brought to court to answer for these crimes. This should be the case whether we're discussing Obama or Bush, Biden or Cheney, Democrat or Republican. In America, the "law is king" and the Equal Protection clause ensures that, in America, no one is above the law, no matter what his political party.

But when that portion of the Constitution is not enforced against the leaders who swore to uphold it, the system fails and a failed system can only result.

Along these lines, what can we do as lawyers to ensure that the law is applied equally to leaders and laypeople alike? When you defend people, whom the law does apply to (with a vengeance!) it can be difficult to find the time to stand up against a drive to make it not apply to the powerful or the money to give to those who have taken on this fight.

Why not sign a petition aimed at compelling Democrats to seek prosecution of the Bush administration who violated the law of the land and the Constitution they swore to uphold? The American Freedom Campaign is assembling a petition to do just that, which reads:

"We are lawyers and law students in the United States of America. As such, we have all taken (or will be taking) an oath obligating us to defend the Constitution and the rule of law from those who would violate and subvert them, and to hold wrongdoers accountable.

We believe the Bush administration has committed numerous offenses against the Constitution and may have violated federal laws. Evidence exists that it has illegally spied on Americans, tortured and abused men and women in its direct custody, sent others to be tortured by countries like Syria and Egypt, and kept people in prison indefinitely with no chance to challenge the bases of their detention. Moreover, the administration has blatantly defied congressional subpoenas, obstructing constitutional oversight of the executive branch.

Thus, we call on House Judiciary Chairman John Conyers and Senate Judiciary Chairman Patrick Leahy to launch hearings into the possibility that crimes have been committed by this administration in violation of the Constitution, federal statutes, and international treaties. We call for the investigations to go where they must, including into the offices of the President and the Vice President. Should these hearings demonstrate that laws have in fact been broken by this administration, we support all such legal and congressional actions necessary to ensure the survival of our Constitution and the nation we love."

Patrick Fitzgerald (who was nominated to his current position by Republican Senator but who has also taken many steps to disassociate himself from either political party) has the expertise, independence and commitment to the rule of law to pursue these prosecutions. There's an old Jewish proverb I think of frequently that says "He who has the gold makes the rules." This may simply describe human nature and the nature of power. But today this proverb is in danger of becoming "He who has the gold (and the power) and breaks the rules later escapes them" we are in real trouble, as the King, who proclaimed himself above the law and that we therefore had to rebel against and defeat, has returned to power.

UPDATE: In response to a comment by former federal prosecutor and Firedoglake diarist Looseheadprop, I revised the post above and removed any reference to Fitz being a registered or affiliated Republican. After leaving the comment below, I did some research and found that the nomination of Fitz by Sen. Fitzgerald (no relation) drew his party's wrath, especially that of Karl Rove. Fitz apparently even changed his registration from "independent" to "none" after discovering that "independent" denoted a party, which he sought to avoid.

My mistake; you don't have to "lighten up" after all. I'm just happy you stopped by to correct my mistake. I always enjoy your well-researched work at FDL.

Friday, December 19, 2008

I helped my friend write a brief a few months back. The issue was whether a statute which stated:

any presentence report . . . shall be privileged and shall not be disclosed directly or indirectly to anyone other than a judge, probation officers to whom an offender’s file is duly transferred, the probation administrator or his or her designee, or others entitled by law to receive such information, including personnel and mental health professionals for the nebraska state patrol specifically assigned to sex offender registration and community notification for the sole purpose of using such report or examination for assessing risk and for community notification of registered sex offenders. ... the court may permit inspection of the report or examination of parts thereof by the offender or his or her attorney, or other person having a proper interest therein, whenever the court finds it is in the best interest of a particular offender.

requires the court to make a finding of "best interests" finding before allowing the prosecution to review the PSI.

In short, the issue was whether the prosecutor was (1) automatically entitled to review the report (a member of the group of "others entitled by law" to review the PSI) or (2) whether he or she was- like the Defendant and his or her attorney- not automatically entitled to review it until the court found that viewing it was in the Defendant's best interests.

Note that if the Nebraska Supreme Court found that the prosecutor was a member of group (1), an absurd result, where the prosecutor saw it and the Defendant could not, was bound to happen. After all, if the prosecutor doesn't have to ask before viewing this "privileged" document and the defendant does, all it takes is for one judge to say no before a situation arises in which the prosecutor and the probation officer have access to a document that the Defendant doesn't, prior to sentencing.

The opinion was released today and that's exactly how the court ruled:

In order to facilitate full adversary testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the psI in order to evaluate factors relevant to sentencing and make informed arguments to the court regarding the proper sentence. For these reasons, we conclude that prosecutors are among the “others entitled by law to receive” the information in a psI under § 29-2261(6). We conclude as a matter of law that because prosecutors are “entitled by law to receive” the information in the psI, it is not necessary under § 29-2261(6) for a court to determine whether it is in the best interest of the defendant before allowing the prosecutor access to the psI. We therefore conclude that the county court did not err in overruling albers’ motion to preclude review of the psI by the prosecuting authority and that the district court did not err in affirming such decision.

However, compare the Court's reasoning below with the statute above:

[S]entencing is a critical stage of a criminal proceeding, Mempa v. Rhay, 389 U.s. 128, 88 s. Ct. 254, 19 L. ed. 2d 336 (1967), and the information in a psI is relevant to sentencing. In order to facilitate full adversary testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the psI in order to evaluate factors relevant to sentencing and make informed arguments to the court regarding the proper sentence.

If sentencing is a "critical stage" and "full adversar[ial] testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the PSI... to evaluate factors relevant to sentencing and make informed arguments... regarding the proper sentence" then how can the statute at issue not violate due process since it requires the Defendant to ask the judge to view this document but entitles the prosecutor automatic access "as a matter of law?"

It's not surprising that a Court would exalt a prosecutor- that's the age we live in- but in exalting him in this way, didn't the Nebraska Supreme Court create a scheme that violates Due Process? All it takes is for one judge to say no to a Defendant and the prosecutor will see what the accused cannot.

If "it is necessary for the prosecutor to have access to information in the PSI" but also necessary for the Defendant to ask the Court before doing so, and likely that a court will soon say no, how is Due Process not violated by this interpretation?

Will someone help us appeal this issue to the U.S. Supreme Court, to avoid this absurd result?

Tuesday, December 16, 2008

It doesn't have much to do with criminal defense work or the law in general, but I found the quote below in a stack of books my kids have long forgotten. It's from The Velveteen Rabbit and it reminded me of last weekend and of my trip to TLC:

"What is Real?" asked the Rabbit...

"It doesn't happen all at once," said the Skin Horse. "You become. It takes a long time. That's why it doesn't often happen to people who break easily or have sharp edges, or who have to be carefully kept. Generally, by the time you are Real, most of your hair has been loved off, and your eyes drop out and you get loose in the joints and very shabby. But these things don't matter at all, because once your are Real you can't be ugly, except to people who don't understand."

The part about being real not happening to people who "break easily" reminds me of the Hemingway quote that says "the world breaks everyone, and afterward, some are strong at the broken places." Not everyone becomes real and not everyone learns to become stronger at the broken places, but some succeed.

Friday, December 5, 2008

Doreen Giuliano was obsessed with saving her son from a life behind bars after he was convicted of murder.

She gave herself an extreme makeover — blonde dye job, fake tan, sexy wardrobe, phony name — and began spying on jurors. She befriended one juror to root out any possible misdeeds at the trial, and for nearly eight months, they drank at bars, smoked marijuana and shared meals in her tiny Brooklyn hideaway.

The juror eventually opened up to her about his time as a juror, completely unaware that this seductive older woman was the same dutiful mother who sat through the entire trial just a few feet away from him.

Giuliano says "she was driven by the belief her son was set up by authorities and vilified in the press." So she hatched a plan:

In the fall of 2007, Giuliano reinvented herself. She slimmed down at the gym, rented an apartment in Allo's neighborhood and printed business cards with her assumed name: Dee Quinn, a recent West Coast transplant.

Her husband initially told her she was crazy, but backed down. Soon she orchestrated a chance meeting with Allo on the street, pretending to be a lonely single woman from California and giving him her phone number.

Giuliano began inviting Allo over to her place to soften him up. He never recognized her from her days sitting through the trial.

"She was offering me wine, offering to smoke weed," he said. There also was flirting. But both said it never went any further. Mainly, they talked. And her digital tape recorder rolled.

She says she struck gold in late 2007, while grilling her new friend about his jury duty. "I'll tell you this but I would never tell anybody else," he said, according to transcripts prepared by the defense. "I actually had some type of information."

Allo went on to explain that he didn't know Giuca directly, but used to hang out in his clique and heard rumors about the Fisher slaying — something he failed to mention when questioned under oath during jury selection. Asked if he had been curious about newspaper accounts of the trial, he responded that he'd read them. He also bragged that he had been the first one during deliberations to vote for a conviction. "I shouldn't have been in that jury," he said.

Thursday, December 4, 2008

Remember when the person who killed several in an Georgia courthouse escaped and then a recovering meth-addict convinced him to turn himself in, referencing the book, The Purpose Driven Life? Pastor Rick Warren's book, already a best-seller, became even more popular and he ended up moderating the debate in California between Obama and McCain concerning "evangelical issues."

Right now I am reading Robert Baer's excellent book, The Devil We Know, so Warren's comments to Sean Hannity about the "wisdom" of killing Iranian President Mahmoud Ahmadinejad strike me not only as stupid both militarily and diplomatically, but also an incredible considering they are coming from the mouth of an evangelical leader.

Appearing on Hannity and Colmes, Pastor Rick Warren said the following, as reported in the Washington Monthly:

Last night, on Fox News, Sean Hannity insisted that United States needs to "take out" Iranian President Mahmoud Ahmadinejad. Warren said he agreed. Hannity asked, "Am I advocating something dark, evil or something righteous?" Warren responded, "Well, actually, the Bible says that evil cannot be negotiated with. It has to just be stopped.... In fact, that is the legitimate role of government. The Bible says that God puts government on earth to punish evildoers. Not good-doers. Evildoers."

Reminds me of how much I love the comments of the wonderful Kurt Vonnegut, who wrote:

For some reason, the most vocal Christians among us never mention the Beatitudes. But, often with tears in their eyes, they demand that the Ten Commandments be posted in public buildings. And of course that’s Moses, not Jesus. I haven’t heard one of them demand that the Sermon on the Mount, the Beatitudes, be posted anywhere.

“Blessed are the merciful” in a courtroom? “Blessed are the peacemakers” in the Pentagon? Give me a break!

Not only do they not mention the Beatitudes, Kurt, they've now modernized and reinterpreted that rule about "Thou Shalt Not Kill." That doesn't apply if they're "evil."

Tuesday, November 18, 2008

When I worked in misdemeanors in the Public Defenders Office, I represented thousands of people and a lot of the memories run together. However, when I glanced at a section of Sunday's paper this morning, on my way out the door to a sentencing at 9 am in a neighboring county, I recognized the name of a shooting victim from last weekend. I don't remember him very well, but remember Shyton Sherrod as very friendly and quick to laugh. I believe he even laughed at the way I mispronounced and then later practiced pronouncing his name to get it right. If I pulled the file and reread my notes, more memories might be "refreshed."

When I read the article, I was surprised to learn that Shyton played on the same team and was even called better than former Husker star Ahman Green:

Shyton D. Sherrod made "the block of the season" during the National Youth Football Championship in 1991, allowing North Omaha Boys Club Bears teammate Ahman Green to score a critical touchdown in a game the team won.

Sherrod was as talented a player as Green, said Raymond Parks, former offensive line coach for the Bears.

"There was some discussion as to who was the better player," Parks said. "They both had the potential to go on to bigger, better things."

November has been a bad month in Omaha as the death is the eighth homicide in the city so far this month and the 40th of the year.

Monday, November 17, 2008

I've writtenbefore about Douglas County Crime Scene Investigations commander David Kofoed. As I wrote then:

Several years ago a rural Nebraska couple were brutally killed by shotgun blasts to the head. The investigation quickly focused on relatives, specifically cousins Matt Livers and Nick Sampson. Officials quickly theorized that the Sampson car was the getaway vehicle, but an initial search found no DNA evidence. That's when CSI commander David Kofoed was called in for one more search. He "found" a speck of blood matching one the murder victim's DNA on the vehicle's steering column.

Case closed, right? How is the defense lawyer going to demonstrate that the DNA isn't the smoking gun, in other words?

The only problem for Commander Kofoed was that shortly thereafter, two Wisconsin teens were arrested for the murder and a large amount of DNA evidence was once again found in their vehicle.

Yesterday the Omaha World-Herald described an FBI investigation into the matter. It reported that "the speck of blood was the only physical evidence linking cousins Matthew Livers and Nick Sampson to the killings of Livers' uncle and Aunt" and that "Livers- who had been characterized as borderline mentally retarded- implicated himself and Sampson in the murders during 11 hours of questioning." The cousins spent "months in jail" according to the article. It also describes the FBI "looking into why law enforcement continued to detain the cousins even after overwhelming DNA and physical evidence pointed to other suspects."

Kofoed described his reaction to the FBI investigation:

"It would be absolutely ridiculous to plant one little speck, and then be the one who finds it... if you were going to plant evidence, you're going to put it on the steering wheel, or on the car seat or on a door ahandle, a place where it makes logical sense to find it."

Doesn't sound like a guy who's ever considered planting evidence, does it? Remember also that Kofoed's search, which was conducted on his own initiative after an earlier search, by his own lab, yielded no evidence. So, finding more than a "little speck" on a "door handle" would have looked pretty suspicious, don't you think? As the World-Herald reported and I described in my previous post:

"An initial search of the car by a member of Kofoed's staff found no evidence linking it to the killings.

Sometime later, Kofoed re-examined the car, the suit says, and found a tiny spot of blood on the steering column.

A laboratory examination later determined that the blood was consistent with Wayne Stock's DNA.

The Stocks were killed by shotgun blasts to the head and were found in their farmhouse.

Almost immediately, Cass County Sheriff's investigators and the Nebraska State Patrol theorized that a disgruntled family member killed the wealthy couple and that the Sampson car was the getaway vehicle.

Either alternative is very troubling. Just ask those people sitting on death row largely as a result of DNA evidence processed through Kofoed's lab.

Kofoed appears to have learned a lesson, however, through this investigation. After the "speck" of blood he found led to the jailing of two innocent men, one borderline mentally retarded, who "confessed" after 11 hours of questioning, who spent months in jail accused of killing their relatives for money, Kofoed has suffered gravely. Although he remains in his job, the investigation has been rough on him:

"I felt the full power of the federal government coming down on me," [Kofoed] said.

Sunday, November 16, 2008

Mark Bennett came up with a great idea for a blawgosphere poetry contest. The subject? Last week, as the Times of London reported:

An internet blogger and a writer who disguised an attack on Burma’s dictator in the form of a love poem were among dozens of activists sentenced to draconian jail terms as the junta ordered a fresh crackdown on dissidents.

Nay Myo Kyaw, 28, who wrote blogs under the name Nay Phone Latt, was sentenced to 20 years and 6 months in jail by a court in Rangoon. The poet, Saw Wai, received a two-year sentence for an eight-line Valentine’s Day verse published in a popular magazine.

Aung Thein, the lawyer for the men, was given four months in prison on Monday for contempt of court during his defence.

After I read Mark's post and the article, I felt compelled to write. I'd been listening to Victor Chan's The Wisdom of Forgiveness in the car on audiobook over the last couple weeks and some of those ideas showed up. In college I studied Solzhenitsyn's Cancer Ward thoroughly and still think of it all the time. Solzhenitsyn was "gulaged" for making derogatory comments in a letter to a friend about "the whiskered one," Joseph Stalin. Things my professor desciribed about Solzhenitsyn's experience showed up too.

I hadn't written any poetry, other than a couple poems at Trial Lawyers College, since college, so I wanted to try it again. I started the first one after dinner and finished about 10. There were some "spare parts" lying around that I put into a second one, which began at 5 am and ended about 6:30 when I had to let the dog out and wake everyone up.

Enter the contest, as I'm sure you'll do better than me. The two I wrote are below:

Tuesday, November 11, 2008

Last night, sitting in front of the t.v., laptop in hand, working on a new website and feeling guilty for not blogging more lately, I see a story on the local news about a shooting that happened over the weekend. He was a former client and I knew it was him when the age of the man that was killed matched up with the age of the boy I used to represent on misdemeanor charges after I did the math.

I'm amazed how many of my former clients have been killed over the last few years. One of my favorite first clients, whom I wrote about here, was killed in a car accident in the car that he supposedly driving when he ran from the police. Then there was the day a woman reached out and tapped my shoulder a couple years ago and told me she'd buried her son that day. He was a former juvenile client of mine who was hit by a stray bullet at his school, killed without even being involved in the fight.

Then there was the prostitution client who was found in the dumpster and the other one who was pushed out of the car on the interstate by her "boyfriend," only to be hit and killed by oncoming traffic.

And those are just the ones who deaths I heard about. I'm sure there were many others, like perhaps this guy, who might have died quietly, out of the headlines, or this person, whose recovery was inspiring but who went back to prison eventually and who struggled with hepatitis. I wonder if she's still alive?

Last Tuesday, election day, I had the best conversation with a woman who was a resident of the care home that was serving as a polling place. I was volunteering as a poll watcher and she approached me to complain about something I've forgotten. She and I ended up talking for a long time, about what it was like to be in a care home, and how much she missed little things like being able to cook for herself and being able to go for a run. She'd recently lost a foot to diabetes and the look in her eyes when she told me about missing "little things" like being able to jog or cook your own food made me want to go home, run, cook and quit complaining.

When we talked about her wanting to vote provisionally, she told me she couldn't remember sending in her absentee ballot as she'd been on a lot of morphine at the time.

She told me she wanted to make sure her vote counted because she didn't think she'd make it to the next one. I didn't know what to say, but I listened and I think that's why we got along so well.

Then later, a black man, also in a wheelchair and also missing a foot from diabetes rolled up to the polling place from his room upstairs in the care home. I tried to help him when they told him he couldn't vote, even calling the "hotline" they gave me. But it didn't work as the man couldn't tell us when he'd last voted, decades ago perhaps, and described moving since the last time he voted. It appeared he'd been "purged" from the list of registered voters and, being no longer registered, could only register for the next election, unable to vote in this one.

He looked very disappointed to not be a part of "this" and, like Gloria, the other one-footed voter, like he wasn't sure he'd live to see another one.

I thought of him both on Veteran's Day today and last week when it was announced that one Nebraska electoral vote, from Omaha, went to Obama. Something tells me that's what he wanted to be a part of.

Saturday, November 1, 2008

Glenn Harlan Reynolds is a law professor at the University of Tennessee and author of the blog "Instapundit." His wife, Helen Smith, is also a blogger as well as a forensic psychologist who writes this blog. Yesterday she came up with an idea to deal with uppity Obama voters, at least those who are waiters and waitresses. In a post, linked to by her husband, entitled “Should You Tip Less in an Obama Administration?”, she writes:

I often tip generously both because I have been a waitress and because I think it is important to reward people who work. However, if Obama gets in (and it is still an if), perhaps tipping less or not at all would be a good way to save money as a way of "going John Galt." Yet, is it fair to the person who is stiffed? What about a compromise, just tipping less? What do you think?

In case you don’t know, John Galt is the hero of Ayn Rand’s Atlas Shrugged who:

...is a man disgusted that non-productive members of society use laws and guilt to leech from the value created by productive members of society, and furthermore even exalt the qualities of the leeches over the workers and inventors. He made a pledge that he would never live his life for the sake of another man, nor ask another man to live for him, and founded an enclave, separate from the rest of the country, where he and other productive members of society have fled.

So Dr. Helen’s idea for “going John Galt” is to get and other “Atlases” (picture of her husband) to not only stop holding up the world but stop tipping those who only hold up plates and trays for these world carriers.

That will teach them to vote Obama! To be fair, she doesn’t actually advocate stopping the practice, well common courtesy, of tipping. She is simply proposing “just tipping less.” Don’t stiff them, just cut their wages down. After all, they're paid a whopping $2.01 per hour to bring you your lunch.

As if this weren't arrogant enough, she then goes even further, suggesting that along with a lower tip, other "Atlases" should leave notes, referencing Obama:

I've been thinking. If Obama is elected, maybe in lieu of a tip I should leave a note like the following:

HOPE AND CHANGE FOR AMERICA: Spreading the Wealth Around.

In lieu of a tip, $_____ has been donated to the Re-Elect Obama for President Campaign. Thank you for supporting the man and the movement that are bringing America together!

If enough people leave notes like this, I'm sure it will galvanize waitpeople everywhere in support of The One!

”

Have you ever seen clearer evidence that the Ayn Rand wing of the Republican party needs to be defeated, purged, and perhaps tarred and feathered along the way?

Dr. Helen provides one reason that she tips, but I’d like to suggest another. She says, “Despite this post, I often tip generously both because I have been a waitress and because I think it is important to reward people who work.”

I waited tables and bartended my way through undergrad. In fact, sometimes, as a criminal defense lawyer who works frequently with people either actively using drugs or struggling to kick their habits, I think I use the people skills I learned as a bartender more than the information I learned in law school.

The other reason to tip, Dr. Helen? The person you may be treating like a second-class citizen is likely going to be alone with your soup. Although I didn’t ever witness it, I heard stories from co-workers who worked college towns like Lawrence, KS, where the city was largely broken down into financially-comfortable professors or administrators and their families and ramen-noodle eating students/waiters, who couldn’t control what you left them for a tip but could control what they left in your French Onion soup the next time you came in.

News Flash to Dr. Helen and other alleged Atlases considering going "John Galt" on their waiters: When you are willing to unfairly exploit the trust-based relationship that waiters and waitresses rely on and retaliate by stiffing them because their social class likely marks them as Obama voters, don't be surprised when they're willing to return the favor by spitting squarely into your Cesar Salad. When you laugh to Instapundit about how clever it is that you're teaching Obama voters a lesson by short-changing them with a lousy tip, don't be shocked that they're standing in the back room laughing, imagining you getting a little more than you paid for in your ranch on the side.

I know that’s disgusting to consider, but it’s motivated me to be respectful, both because these people work hard to serve you your food and because I know that people who feel deprived of justice and unable to attain it through wages will often create their own version of it, if only for a laugh at your expense as you sit there discussing Ayn Rand, thinking of yourself as somehow holding up the world, and then leaving a 10% tip since they probably voted Obama.

One of my favorite street-smart judges acknowledges this reality by stating, whenever he sentences a person and discovers, in the process, that they work in a restaurant. He says, “well, I can never go back there again!” When they try to tell him he can come back to eat there, he usually asks them if they think he's that dumb and they usually say no. And then they go to jail and he finds a new place to eat.

As disgusting as it is to consider this, is it any less so to advocate, as "Instawife" does, that people should retaliate against an Obama victory by cutting tips down and thus stating, in effect, “this is what you get for not voting McCain / Palin." But in fact, she goes even further than this, stating, obviously sarcastically, that leaving notes referencing Obama will "galvanize waitpeople everywhere in support of The One!"

And what would a forensic psychologist say about a person who espouses these disgusting beliefs?

I truly think she imagines mad "waitpeople everywhere" standing in the backroom angrily regretting their votes for Obama and being converted into neocons instantaneously. It's as if she's thinking, in true Randian form, that by stiffing these people she's truly helping them, teaching them the "virtue of selfishness" and being willing to "go John Galt" and deprive them of the benefit of her world-supporting habits if they don't vote the way she wants them to next time.

I have to admit, it gives me a sense of justice to think of her arrogantly walking out of the restaurant, believing that she and her co-Atlas, uber-nerd husband are teaching their waiter a lesson while the waiter cheerily waves goodbye, remembering that cold he just got over and wondering what the results of that (medical?) test are going to be.

No Justice: No Peace of mind that your salad doesn't contain your waiter's saliva is how the world works.

- - -Seriously, isn't this a wonderful example of the need to raise the minimum wage for "waitpeople everywhere?" After all, their wages are well below the regular minimum wage because of an assumption that they are tipped at a certain rate. Because a prominent right-wing blogger's wife is advocating retaliation for an Obama vote via cheap tipping, isn't this evidence that the trust inherent in the waiter's role is being exploited? Why not raise their wages so they don't have to rely on people like Dr. Helen Smith to afford the food they're required to deliver to her table?

We don't need an Army of Davids, at least not the kind who see themselves this way while advocating punishing waiters for an Obama victory. What we need is an army of waiters.

UPDATE: I think this is Dr. Helen's attempt to "soften up" the sickness of her post on waiters. But I think it's even more revealing, perhaps just the product of her realization that the waiters she depends on can, well, read and perhaps create a little "instajustice:" In response to a commentator who (1) assures her he and his other pizza delivery drivers are mostly McCain supporters, and (2) asks her not to take it out on those who depend on tips:

There is no way I could. In the space of the past 24 hours, I have been out to eat three times and left even bigger tips than I usually do. I am watching people work hard and I know I cannot withhold money to local people in Tennessee that are so industrious. Perhaps in blue cities or where it is clearer that people believe in redistributing wealth, it would be easier.

Translation: "Don't spit in my food here in Knoxville 'cause I'm only going "John Galt" when I travel to "blue cities or where it is clearer that people believe in redistributing wealth."

Her husband then links to what he calls an Instapundit take on taxes that also reveals a lot about the instacouple's take on waiters and other poor people:

"Throughout history, poverty is the normal condition of man. Advances which permit this norm to be exceeded — here and there, now and then — are the work of an extremely small minority, frequently despised, often condemned, and almost always opposed by all right-thinking people. Whenever this tiny minority is kept from creating, or (as sometimes happens) is driven out of a society, the people then slip back into abject poverty."

So just keep on serving them the food, no matter how much or how little they tip you; otherwise the "small minority" that obviously includes this lovely couple, will "go John Galt" and we'll all go back to our "normal condition" of poverty.

As if you could possibly stomach it, here's a link to Dr. Helen discussing what she calls "the various ways of "going John Galt.""

Apparently if we don't "go John McCain" next week, this (thankfully!) small minority of so-called "Real Americans" have more ways of "going John Galt" in store for those of us who live in "blue cities or [places] where it is clearer that people believe in redistributing wealth."

My wish: Please follow the real John Galt and show us what it would be like to have to live without you!

Tuesday, October 28, 2008

I remember being a public defender just a couple years out of law school and meeting with a young client charged with a misdemeanor. I don't remember the charge or even his name, but I do remember the serious tone in his voice when he told me he was considering suicide. It didn't sound like an empty threat or a cry for attention, but sounded like a genuine cry for help. It also sounded like it was nothing I could do that much about in the long-term as I had a full afternoon of court and not much expertise in dealing with people this desperate,whose immediate problems were more mental than legal.

But it was a moment I'll never forget. He seemed both trusting and serious about his wish. I, on the other hand, knew I was in way over my head and that I had to take this seriously. We contacted a local suicide hotline and made an appointment for him to meet with someone that day. I saw him a few weeks later, at his court hearing, and he seemed to being much better. But I was busy again and didn't have time to follow up to see if this peace lasted.

I hadn't thought about this in a few years, but today a letter arrived from my daughter's high school that made me think of it;

"All of us at XXXX High School were deeply saddened to receive news this weekend of the death of ... one of our XX grade students. [She] died Sunday evening by hanging...

The most important thing we should do is to be supportive and encourage discussion about the events, our feelings, and what we can do in response to it.

She was likely just 17 years old if she was in 11th grade. What a tragedy.

Sunday, October 26, 2008

I've been incredibly busy lately, bringing work home and unable to sleep some nights thinking about cases. But I love baseball, love the story of the Rays, who had the worst record in the American League last year as well as the second lowest payroll in baseball. Now they're in the World Series, so I don't want to miss an inning.

Last Sunday night, as I watched the Rays beat the Red Sox, I had to transcribe a tape recording quickly, for the next day, but didn't want to miss the game. So, I came up with a solution:

1. Hook up Mac Dictate, the talk to text application that brought the "engine" behind Dragon Naturally Speaking to Macs, the headset covering one of my ears.

2. Hook up the headphone from the digital recorder to the other ear and simply repeat the words I hear into the microphone, in theory at least, turning the spoken words into text to create a "transcript."

3. Put the Macbook on my lap to correct the inevitable misspellings or to add text when it's faster to type than to speak.

I had good reasons for doing it this way (I needed a working transcript quickly) but there are obviously much better ways to do it if you have the time.

Still, as I worked on three different electronic devices while trying to watch baseball on a fourth, I thought of the way technology saves us time but how we tend to fill any extra time up with more tasks.

It worked and I got a reasonably good transcript quickly while at least being able to check in on the game once in awhile.

And the underdog won, which is always encouraging.

Note: I recommend Mac Dictate or its PC companion Dragon Naturally Speaking but they do require some training to get "up to speed." I like it, though, because it makes typing less stressful as I can sit back and add text fairly accurately without having to hunch over a keyboard. My letters are a little wordier now (and last week I learned how important proofreading is when I wrote about a "canny attorney) but it's worth the money if you do much typing.

Be careful though. Make sure the microphone is off when you want it to be! Late in the evening, hurrying to pick my wife up but wanting to get one last letter out, I finished the letter. It was late and it was a long letter so I may have said a couple colorful words as I loaded the printer and the envelope. Then, right before I hit "print" I noticed that the green light was still on, meaning that the application/ program was still converting my talk into text.

Oops.

After checking to make sure no four letter words showed up in the letter, I finally sent it off. The next day I tested it. Apparently the developers anticipated this scenario as none of George Carlin's Seven Dirty Words was in the memory. It was a little embarrassing to have to explain to the secretary next door that I was "just testing my computer out.

She said she believed me, but, from the look on her face, I'm not so sure.

Thursday, October 23, 2008

Today's Omaha World-Herald contains an explanation from Chancellor Harvey Perlman regarding the reasons behind his decision to cancel a scheduled speech by William Ayers.

The university on Wednesday released a report from the assessment team, after being asked for more detail on the threats that prompted Perlman's action. Ayers had been scheduled to speak at an education conference in November...

Mario Scalora, a professor of psychology who serves on the campus threat assessment team and wrote the report, conceded that the report contains no direct threat against the life of Ayers or anyone involved.

But it contains some veiled threats that were called and e-mailed to university officials. Scalora said the person who took the "it will be done" message "was rather concerned given the way the person said it."

The report also contains some violent statements posted anonymously on message boards. One from "Lee Harvey Cornhusker" said, "Give me a sniper rifle and a good firing position."

While not directly threatening, Scalora said, the communications attested to the amount of anger that Ayers' visit had incited - anger that made it clear that considerable security measures would have to be made.

"When people spout off a death threat, you can manage that," Scalora said. "It's more you have a bunch of angry people saying they're going to show up and be disruptive. . . . We realized it would require a considerable amount of security."

Scalora said adequate security most likely could have been provided to enable the appearance to go on. But it would have totally changed the nature of the event, which was supposed to be a small conference of education students studying education reform.

"We could have turned it into an armed camp, and it would have happened," Scalora said. "But it would have been difficult for all those present, and there were still concerns with how things would evolve."

Scalora said the committee recommended that for the event to go ahead, a change of location and substantial security, including state and local law enforcement, would be required. The final call, Scalora said, was the chancellor's.

Why isn't this bigger news? The largest state university in Nebraska cancels a speech due to to "a bunch of angry people saying they're going to show up and be disruptive" and a message board posting indicating a desire to get a rifle and a good spot to shoot and no one asks who these people are or what threats they pose?

Imagine the reaction if G. Gordon Liddy were scheduled to speak and threats forced the University to cancel the event. What would be the reaction?

Apparently the "anonymity" of blogs and message boards is a barrier to any "investigation" of these threats. Quoting UNL Police Chief Owen Yardley the article states:

UNL police will investigate some of the threats, but it will be difficult to track people who sent e-mails or posted on blogs, Yardley said.

I.F. Stone used to summarize his speeches by saying that the audience would likely forget most of what he said but that it should remember one thing: "All Governments Lie."

Will someone please examine both these "threats" and these claims and tell us whether either is true?

Saturday, October 11, 2008

Tim Nelson is the Democratic candidate for canny attorney in Maricopa County, Arizona. The incumbent, Andrew Thomas, a Republican, denied any involvement in a recent attack ad that went after Nelson:

The Nelson ad opens with images of children riding tricycles and eating dinner at a family table."They deserve a safe neighborhood, a secure home," a woman's voice says. "They deserve the innocence of childhood and all of its wonder. And they deserve to be protected."Then there's a drum roll and a frowning photo of Tim Nelson flashes on screen."But can they count on liberal ACLU lawyer Tim Nelson?" the woman continues. "He took money from a child pornographer and from lawyers who defend child murderers. Liberal Tim Nelson isn't just wrong. He's dangerous."

So I guess the lesson is that if you’re a criminal defense lawyer be careful about the unintended consequences of contributing to political campaign. While you may be trying to help, imagine if you later see an ad stating that the candidate you support “ took money from a lawyer who defends (insert something one of your clients was accused of.)” [Don't worry Scott Kleeb, this isn't a long-winded attempt to get out of that promised contribution! If you want my money, I'll still give it to you!]

Before I met Steve Achelpohl, an Omaha criminal defense attorney and current chair of the Democratic Party, I used to feel sorry for him when I saw him interviewed on TV. Not only did he have the difficult task of speaking for the minority party in a very red state, his opponent would inevitably remind the audience that Steve was one of those, you know, “criminal defense lawyers.” While you expect such things in politics (Obama seems to have a good trial lawyer’s ability to, jiu jitsu like, turn such attacks to his own advantage) this ad sinks to a new low.

So where did the ad come from? The Thomas campaign denied any involvement. The article states that “[the ad] was produced by an independent organization with which Thomas' campaign could not legally collaborate.”

But who paid for it? According to the article:

The Republican Party paid for one airing of the commercial on Channel 5, said Edward Munson Jr., the station's vice president and general manager.

I don't mean to pick on Republican county attorneys, only to call BS on this ad and this tactic which targets not only criminal Defense lawyers but the candidates they support. I don't think this tactic is a "Republican" tactic, only a dirty one. If the parties were reversed, I'd say the same thing.

So what do you do about it? The ad concerned the contribution of $390 from a criminal defense lawyer to Nelson's campaign. Nelson later gave the money to the victim's rights organization, but the ad aired anyway.

So Nelson lost the money and still paid the price. But what if, whenever we see such a deplorable tactic, we resolve to contribute to its target, no matter which party we are contributing to?

Tuesday, October 7, 2008

... should not throw stones. As Sarah Palin accuses Obama of "palling around with terrorists" she should realize that her own past will, or at least should, be fair game as well.

In 1994, the New York Times, in an article entitled "Remains of Alaska Separatist Are Identified" writes that:

The blue tarp and duct tape in which the remains were wrapped, officials said, matched a description given by a convicted thief, Manfred West, who confessed last summer that he had killed Mr. Vogler in a plastic-explosives sale gone bad and had then buried him.

Remember that Palin's husband Todd was a member of Vogler's group, the Alaska Independence Party, until 2002.

According to this article in Salon.com today, not only was Vogler the founder of the Alaska Independence Party, he also proudly claimed "I'm an Alaskan, not an American. I've got no use for America or her damned institutions." In this quest, he also sought and received the support of another nation in this quest:

Vogler's greatest moment of glory was to be his 1993 appearance before the United Nations to denounce United States "tyranny" before the entire world and to demand Alaska's freedom. The Alaska secessionist had persuaded the government of Iran to sponsor his anti-American harangue.

Imagine the reaction if Obama's spouse had, just six years ago, been a member of a group whose founder's body was found after "a plastic explosives sale gone bad?, who claimed to have "no use for America or her damned institutions?"

Did she "open the door" to the discussion of these ties to radicalism by trying to point to Obama's supposed radical links?

Sunday, October 5, 2008

I once heard Arundati Roy say that when she wants to know what is truly going on in America she turns to people like Noam Chomsky. Whether you agree with his politics or not, the following excerpt (and prediction) from a recent interview with Alternet, is both scary and insightful:

My assumption all along is that McCain will probably win. Now that he has picked Sarah Palin as his vice president, I think those probabilities have increased, for reasons that are understood by party managers and have been expressed very well by McCain's campaign manager. He said the election is not about issues, it is about character and personality, and so on. Meaning, it is not a serious election. That is the way U.S. elections are run. Issues are marginalized. They don't talk about them and the media coverage is about Rev. Jeremiah Wright's sermons or Sarah Palin's pregnant daughter.

It was reported today that Obama will respond to McCain's announced new aggressiveness with "political jiu jitsu," that is, by going after McCain as undependable in a crisis as shown by his choice of attack over leadership. While such tactics strike me as effective both in trial and in politics, Chomsky believes the Republicans still have an advantage:

...These elections are run by the public relations industry. The intellectual community goes along. Issues are marginalized. The focus is on personalities, on Jeremiah Wright's sermons, Sarah Palin's pregnant daughter, or whatever it may be. In that terrain, the Republicans have a big advantage. They also have a formidable slander and vilification machine which has yet to go into full operation. They can appeal to latent racism, as they are already doing. They can construct a class issue. Obama is the elite Harvard liberal; McCain is the down to earth ordinary American, and it so happens that he is one of the richest people in the Senate. Same thing they pulled for Bush. You have to vote for Bush because he is the kind of guy you would like to meet in a bar and have a beer with.

While I don't share Chomsky's skepticism that, at least in this election, personalities will trump issues enough to win, his point about the "two factions of the business party" seems more appropriate in the wake of the bailout, I mean "rescue."

These are games run by the public relations industry, which is a huge industry. It spends enormous resources manipulating attitudes and opinions. They design and control elections so that public in effect is marginalized. They keep away from issues for a very good reason. We know a lot about American public opinion. It is a very heavily polled country, mainly because business wants to keep its finger on the public pulse. So there is a ton of information, valid information. On a host of major issues, domestic and international, both political parties are well to the right of the population. So therefore, you don't want to talk about issues, not if you want to keep the business parties in power. Further, the population is aware of this, but the press won't publish it; 80 percent of the population says the country is run by a few big interests, looking out for themselves, not the benefit of the people, By about 3 to one, people object to the fact that issues are not at the center of the campaigns. They want issues to be discussed, not personalities. Party managers know that, but they won't go along with it; it is too dangerous. They have got to make sure that the two factions of the business party, Republicans and Democrats, stay in power.

Obviously there are enormous differences between these "two factions" that are at stake in this election. The biggest, in my view, lies in the areas of Supreme Court appointments, as we will be rid of either Obama or McCain in less than a decade but dealing with their appointed Justices for generations.

But Chomsky's descriptions ring true and thus worry me about whether a man who has shown an inability to manage a campaign or choose a running mate will end up winning despite these errors. In fact, two articles which were not widely reported over the last week worry me even more. They both concern whether an "October Surprise" is coming soon.

First, Robert Baer, a former CIA Agent and the inspiration for George Clooney's character in Syriana asks, in this article, "Are we going to have an October surprise, an attack on Iran by either the Bush administration or by Israel to stop the regime from becoming a nuclear power?" answering that:

It could happen - and alter the dynamics of the presidential race in the blink of an eye - but only if Israel pulls the trigger. Don't expect the United States to drop bombs anytime soon. The reason: Iran has us over a barrel.According to Britain's Guardian newspaper, Bush earlier this year nixed an Israeli plan to attack Iran's nuclear facilities. Reportedly, the President said no because we couldn't afford Iranian retaliation against our troops in Iraq and Afghanistan or Iran closing down Persian Gulf shipping. Nonetheless, cynical speculation is now swirling in some quarters that with the financial collapse working against McCain - and Bush's legacy coming into focus - the President might reconsider. Could that tail really wag the dog?

What would be the purpose of any attempted manipulation of the U.S. election? It could just be to use the election to magnify the media coverage of their terrorist activities, make al Qaeda look even more capable than it is, and remind everyone they are still around. Such a media-amplified attack might help them with recruitment and fundraising. Even more likely is the possibility that al Qaeda would hope the attack would benefit John McCain. Opinion polls, which, as noted above, al Qaeda reads closely, suggest that an attack would help McCain. Polls in Europe and the Middle East also suggest an overwhelming popular support there for Barack Obama. Al Qaeda would not like it if there were a popular American president again.

I have no idea whether Chomsky is correct about McCain or whether Baer and Clarke are correct to anticipate either a U.S. approved Israeli attack on Iran or an Al Queda attack on the U.S., but I know this guy's analysis is always spot on: "It ain't over 'til it's over."

Wednesday, October 1, 2008

I’ve found it harder to write about criminal defense or other legal issues lately as I’m a little mesmerized by the election and the financial bailout. But in watching Katie Couric interview Sarah Palin, it seems her technique has something to teach lawyers about cross examination. I don’t mean to imply that Katie is cross examining Sarah the way a lawyer would “cross” a witness in court, but maybe her technique would work for us.

Katie’s best weapon is the follow up question. Palin, much like an expert witness, can say nothing very well and has memorized the talking points well. But she can’t deal with a simple follow up question that forces her to get into specifics beyond the platitudes.

For example, in this exchange, Couric has just asked Palin why, in her view, is Roe v Wade a bad decision and Palin has replied that it “should be a states' issue.” Watch how Couric asks a simple follow up to delve into her understanding of the foundations of the decision;

COURIC (to Palin): Do you think there's an inherent right to privacy in the Constitution?PALIN: I do. Yeah, I do.COURIC: the cornerstone of Roe v WadePALIN: I do. And I believe that...individual states can handle what the people within the different constituencies in the 50 states would like to see their will ushered in in an issue like that.COURIC: What other Supreme Court decisions do you disagree with?PALIN: Well, let's see. There's..of course...in the great history of America rulings there have been rulings, that's never going to be absolute consensus by every American. And there are..those issues, again, like Roe v Wade where I believe are best held on a state level and addressed there. So you know..going through the history of America, there would be others but..COURIC: Can you think of any?PALIN: Well, I could think of...of any again, that could be best dealt with on a more local level. Maybe I would take issue with. But you know, as mayor, and then as governor and even as a Vice President, if I'm so privileged to serve, wouldn't be in a position of changing those things but in supporting the law of the land as it reads today.

Couric certainly could have pressed her harder, asked again if she could, please, just name one decision or at least admit that she doesn’t know one. But she, probably wisely, moves on, knowing that it will be a long “cross” and that the truth about Palin’s knowledge on Supreme Court decisions has been sufficiently uncovered.It’s easy to build a “house” that looks pretty solid when you can build it using a candidate who reads from teleprompters and then is interviewed by people like Hugh Hewitt who asks such tough questions "Now Governor, the Gibson and the Couric interview struck many as sort of pop quizzes designed to embarrass you as opposed to interviews. Do you share that opinion?

Hewitt later (seemingly on redirect after cross by Couric) asks her if she and her husband “ever faced tough economic times where [they] had to sit around a kitchen table and make tough choices?” Palin, being thrown a softball, says that she “know[s] what Americans are going through.”But then, in what must have made Hugh cringe, made an admission that won’t sit well with McCain. She said:

[T]here’s been a lot of times that Todd and I have had to figure out how we were going to pay for health insurance. We’ve gone through periods of our life here with paying out of pocket for health coverage until Todd and I both landed a couple of good union jobs. Early on in our marriage, we didn’t have health insurance, and we had to either make the choice of paying out of pocket for catastrophic coverage or just crossing our fingers, hoping that nobody would get hurt, nobody would get sick.

Ouch. She did just fine until she admitted it was a “union” job that pulled them up. To return to the “House” analogy, it’s easy to build one that appears strong when its strength is only tested by people like Hewitt and by speeches in front of screened augiences with a teleprompter clearly showing what another person previously wrote and that your candidate has practiced. But Couric “blew the house down” with simple follow up questions. Remember the question about which publications Palin reads? Watch how the follow up question dooms her and shows the audience that the person being questioned, who eloquently spouts generalities, cannot survive being asked about specifics:

COURIC: And when it comes to establishing your world view, I was curious, what newspapers and magazines did you regularly read before you were tapped for this — to stay informed and to understand the world?PALIN: I’ve read most of them again with a great appreciation for the press, for the media —COURIC: But what ones specifically? I’m curious.PALIN: Um, all of them, any of them that have been in front of me over all these years.COURIC: Can you name any of them?PALIN: I have a vast variety of sources where we get our news.

Once again, ouch. The seemingly solid “house” gets blown down when asked for simple specifics.It will be interesting to see how Palin does tomorrow night and the stakes for her career will be incredibly high. She will likely either turn into a footnote (if she performs like she did in these Couric interviews) or perhaps create a future for herself even if McCain loses if she can prepare and perform on a national level so quickly after such a shaky start.

Of course, hardcore supporters and detractors will see what they expect to see, but if Palin can somehow win over those who aren’t so polarized, she might pick McCain, and perhaps herself, up off the canvas the Couric interviews clearly put her on. Couric also deserves credit for effective use of the “soft cross,” or at least the journalistic version of it. I saw Couric, before this interview, perhaps as Palin’s handlers likely characterized her, as a sweet, competent, but not hard-hitting reporter. I expected a friendly chat, with no real cross examination, but Couric showed that she can use these personality traits to her advantage. She, softly and nicely, kept asking follow up questions, not being afraid of the silent, awkward moments between question and answer. Couric brought out the truth about the person she was interviewing without resorting to the type of confrontation that would have turned the audience against the interviewer and towards feeling sympathy for the “questionee.” Gerry Spence describes a moment when a jury member approached him, obviously upset at having just denied justice for his client. The woman asked Spence “Why did you make us hate you so?” He learned that he’d gone too far in tearing up the witnesses on cross, his anger having not only skewered the witnesses but alienated his audience. His hatred spread throughout the courtroom and doomed his client’s case. Having seen how competent and effective Couric was in bringing out the truth about Palin without once raising her voice, I am reminded of another of Spence’s phrases: “Love is always the winning argument.” I don’t mean to imply that Katie showed love to Palin, only that she didn’t show hate, didn’t go too far, knew when to stop, and seemed to sense when to simply let her “witness” hang herself. Couric’s “soft cross” of Palin might be the breath that blew her house down, revealing it to be a mere facade that couldn’t withstand even a simple follow up question.

Friday, September 26, 2008

A couple weeks ago Scott Greenfield wrote about a Ninth Circuit case, Garcia-Aguilar v. U.S. Dist. Court, (link to opinion).

I remembered the judge's bold description that the case "show[s] why the ten most terrifying words in the English language may be, “I’m from the government and I’m here to help you.” In fact, I find myself repeating the phrase out of frustration often, so often, in fact, that I went back to read the case. Since there's no way to improve on Judge Kozinski's introduction, here it is in full:

We consider the district court’s refusal to accept defendants’ unconditional guilty pleas.

These consolidated cases show again why the ten most ter- rifying words in the English language may be, “I’m from the government and I’m here to help you.” Defendants pled guilty to re-entering the country illegally after having been previously removed, in violation of 8 U.S.C. § 1326. Their guilty pleas were taken by magistrate judges, who conducted the plea colloquies required by Rule 11(b) of the Federal Rules of Criminal Procedure, and who thereafter recommended that the district court accept the pleas.

When the cases came before the district court for acceptance of the pleas, the U.S. Attorney objected on the ground that the magistrate judges had erred in conducting the Rule 11(b) colloquies. The district judges agreed and refused to accept any of the defendants’ guilty pleas.

We consider the district court’s refusal to accept defendants’ unconditional guilty pleas.

Rule 11(b) is there for the defendant’s benefit, so it seems quite noble at first for the U.S. Attorney to stick up for defendants’ rights. But this generosity comes at a steep price: The U.S. Attorney has already arraigned defendants on superseding indictments that specifically charge a violation of 8 U.S.C. § 1326(b)(2), which is punishable by twenty years in prison.

This is eighteen years more than the two-year maximum sentence available under defendants’ original indictments, which did not charge any conduct that could increase the maximum penalty above two years. Defendants reject the government’s help and petition for writs of mandamus directing the district court to accept their unconditional guilty pleas.

After that excellent introduction, the opinion ends like this;

Due to the U.S. Attorney’s oversight, defendants may well avoid the enhanced sentences to which they may have been subject under section 1326(b)(2). “So be it.” United States v. Velasco-Heredia, 319 F.3d 1080, 1087 (9th Cir. 2003). The district court shall accept defendants’ unconditional guilty pleas to the original indictments.

One role of the defense lawyer is to educate the judge about the necessity of ensuring that the law is applied to the government as it prosecutes people for breaking it. It's much easier when judges grasp the necessity of this role and so much more enjoyable when they demonstrate it so eloquently.

One other phrase I often think of is that bureaucracy and justice are like oil and vinegar:If not constantly agitated, they naturally separate.

Tuesday, September 23, 2008

On Friday I was able to attend an excellent seminar on Cross Examination put on by the NCDAA which featured Terry and Terry MacCarthy of Chicago. Terry, Jr., was my instructor at the National Criminal Defense College and is both an excellent teacher and lawyer. Terry, Sr., is the nation's leading expert on cross examination. I'll write more on the seminar later, but thought at the end of it that I love to go to these things both for the information and the opportunity to meet with other criminal defense attorneys from across the state and nation.

Bell Island, an excellent criminal defense lawyer from Scottsbluff, NE, described learning a lot about defending DUI cases after joining the NCDD (I know, there are a lot of similar acronyms!) which stands for the National College of DUI Defense. I first heard of the college after attending a seminar that Troy McKinney conducted a few years ago. Since then, I've intended to join but haven't yet. Bell, as well as five or six other Nebraska attorneys, joined the College after hearing Troy's presentation, which was fortunate as just a few years ago there were no members from Nebraska.

Bell told me how much he learned from the college, but it was a story he told that brought this home. He described being in trial, cross examining the State's expert on the Datamaster breath testing device. During the cross, the expert, in front of the jury, blurted out a statement criminal defense lawyers aim for but rarely hear. He said:

"I don't know. You know that machine better than I do."

Guess who the jury listened to? They listened to the expert, who told them to listen to Bell, who later heard two other words: "Not Guilty."

Troy McKinney's presentation a few years ago made me want to join the NCDD, but Bell's story made me finally write out the check. Hopefully I'll know that machine better than their experts in the future.

When you look for a DUI lawyer, ask yourself if they know the machine this well. If they do, you're in good hands.

Thursday, September 18, 2008

Today I appeared in court in a new role for me: Guardian Ad Litem for a "Child" in a child neglect case. A child in Nebraska is a person under 18 and this case involves two teenagers. I won't go into a lot of details as it's both on-going and personal for the family involved. Like most of my cases, it's meth-related but I look at it differently as I'm wearing a "different hat."

When the attorney for the father turned in court and asked the kids whether they were afraid of their father, I didn't object because I knew both what they would say and what I would say later. What would you have said if you hadn't seen your dad in a couple months, had been pulled from your home and were now living in a relative foster care placement?

They said what I would have said, what almost all of us would have said: "No, I'm not afraid."

But there are plenty of reasons to be skeptical of this, none of which I list have anything to do with this particular case but with all meth related cases in general. One reason is that even if you combine a reasonable person with a lack of sleep for a few days, they quickly devolve into unpredictability. Another is that it's easy to fake sobriety when there are no "UA's" to verify that a person is staying "clean." A third is that, at least in my experience, even a few weeks away from meth doesn't eliminate the "tweaking" behavior and irrational decision making that tend to accompany an active user.

Just yesterday a client of mine graduated from Adult Felony Drug Court, earning a dismissal of his felony charges. A month or so ago, a former hard-core user client of mine graduated, along with his wife, successfully from a Juvenile Court Drug Court Program for parents.

I got a chance to speak and I told a story. It wasn't very uplifting but I thought it was appropriate. I told how I got a call from my favorite client, who successfully broke away from heroine, whose appearance changed so much it would bring tears to the eyes of people who saw how great she looked after looking so close to death as she came to court. I told about meeting this client at the jail and watching her collapse on the floor there, of her then falling on the floor of the "arraignment courtroom" a few days later, screaming out the name of the last person who could help her, her public defender.

And then I told about getting a call from her a few years later and her wanting to say thank you. It wasn't the content of the call that got me down, it was the background noise that made the thank you not be very welcome. You know the sound. The universal jail background noise.

So my story wasn't to uplift but to remind these people, who were graduating after less than a year of being clean and sober, that they weren't out of the woods yet. I almost invoked a story from "Deep Survival" in which Laurence Gonzales describes telling people who were setting out to climb mountains that their goal wasn't to reach the summit but to reach the car again. This would remind them that the work wasn't done once you started back down as most accidents seemed to happen not when your guard and senses were up but when you let them down, thinking your work was over and your goal achieved.

It didn't go over very well, but I didn't care. I was sick of seeing "frequent flyers" come back to see me on new charges shortly after their other case ended. I was a little disheartened that after having about 30 trial on termination of parental rights cases and losing about 29, the one client whose case I "won" or who rather cleaned herself up enough that the judge was convinced she deserved another chance, ended up, a few years later being my first case involving possession of meth with intent to distribute.

As depressing as that story is, it's not over as she just entered inpatient treatment and will, if everything goes well, enter Adult Felony Drug Court in a month or so. Maybe this will her "bottom." This time if it isn't, she'll go to prison. But if it is, her first felony will later be dismissed.

So I enjoyed my new role as Guardian Ad Litem. I've heard so much b.s. over the years from active addicts that I just consider if symptomatic and ignore it, believing my eyes and not my ears.

I'm grateful for this past experience, however, because it helps me in this role. I know that asking the kids if they were afraid of their actively-using dad right in front of him and the judge may have convinced the father that his kids have forgiven him but it didn't convince me of anything. It's what Seinfeld would call a "must lie situation": only the most scared or most manipulative teenager would have said "yes."

It's interesting though, to wear a different hat, to have to think of what's in the best interests of two teenagers who are mature enough to take care of things like feeding and cleaning up after themselves but who really need their parents to be both sober and there for them in their teenage years.

I spoke to a judge once who described requiring parties in Juvenile Neglect cases to "switch hats" periodically. He said it was good for them to think of the cases differently, to walk in the shoes of a different party once in awhile.

Great idea as I do see things differently, wearing this hat and having to look out for these kids.

Friday, September 12, 2008

Tony Romo needed 13 stitches in his chin after the Cowboys 28-10 win over Cleveland last Sunday. Then, on his way home to Dallas:

A couple says Romo helped them patch a flat tire on the side of a busy street last weekend after the Dallas Cowboys star returned home from a season-opening win at Cleveland.

Bill and Sharon White told the Fort Worth Star-Telegram that at least 100 drivers ignored their broken-down Mercury before someone stopped late Sunday. Sharon White said a well-dressed man "with something strange on his chin" walked up and offered a hand.

Sharon White said she asked twice before Romo told her who he was and then "screamed real loud, and then jumped up and hugged him."

But the husband had a different reaction as he told Romo:

"Don't tell me how you guys did," he said he told Romo. "I'm going home to watch it."

Sunday, September 7, 2008

What scares me about Sarah Palin is her willingness to lie and the media’s attention to “how she did” as opposed to “what she said” and whether it was true. Reminds me of a former Texas governor who was portrayed as “someone you’d like to have a beer with” and who ended up pissing all over the Constitution the next morning. Forget Hockey moms, the only difference between Palin and Bush is lipstick and that's likely what attracted Dick and Karl to her!

There is a difference between Palin’s words and the truth, however. Consider what she said about the “Bridge to Nowhere.” She claimed to have said “thanks but no thanks” to the money but the NYTimes reported in Nov. ’05 that “ House and Senate negotiators... eliminat[ed] a requirement that $442 million be spent to build the two bridges... [and it] will be turned over to the state with no strings attached.”

Notice the date: Nov. 2005. She wasn’t elected Governor until one year later, in Nov. 2006! She didn’t say no to anything but just did what Congress told her to do: spend the money on something else. Congress said “no thanks” to the remote bridge. She said “thanks” to the cash and “no” to the truth.

So what scares me isn’t Sarah Palin so much her as the people who picked her and who write the lies she delivers, and the fact that the press isn’t pressing anymore. As Twain said, “a lie is halfway around the world before the truth gets its boots on.” With the election so close, it better hurry.

Consider how well these people use propaganda and how bad the press is at cutting through it: Just two years ago a Harris poll showed that 64% of Americans still thought Saddam Hussein had “strong” links to Al Qaeda. WTF?

I agree that Obama has momentum, and that’s something to be encouraged about and fight for. But let’s not misunderestimate these Machiavellian Mayberrys.

The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.'

'

Doesn't this quote tell us not only about Bush's "faith based" Presidency but also about Sarah Palin's Vice and possible presidency? She, or whoever wrote the speech she delivered, could have honestly pointed out that she didn't actually sell the former Governor's jet on ebay or that she wasn't in office when the "Bridge to Nowhere" funds were given to the state, but it's better for them to "create their own reality" by allowing this half-truth to continue its bullshit-fueled journey. "Truthiness" is what Stephen Colbert calls it.

It's not "lying"see; it's "creating their own reality." And it's pretty terrifying actually, with a "shock and awe" quality. It's like they're carrying out a disinformation campaign not in enemy territory but in their own country. Or maybe, seeing themselves as "history's actors" and "us" as the sheep who are left to study what they do, they see voters as livestock to be tended but not respected.

Laws and morality are for suckers who haven't figured out how to obtain immunity, who still believe in "quaint" laws like the Geneva Conventions and, in doing so, show that they're not "history's actors."

I'm excited about Obama's rise but don't know what we'll do if their tactics work this time. The stakes are very high and the empire knows how to strike back. Just look at the way they dress a wolf up in sheep's clothing.

About Me

I am a criminal defense lawyer in Omaha and these are my thoughts on law, politics and art. Disagree with me? Am I dead wrong? Have your own two cents to add? Leave a comment and let's discuss it. Thanks for stopping by.